11/13/2009

If Obama were to answer yes, he would not be re-elected. The answer would haunt him and damage him irrevocably.

What if Obama were to answer no? Allahpundit is convinced that, if Obama were somehow forced to answer the question, that’s what his answer would be — meaning that the trial would be a sham:

There’s no way they’re letting KSM go. It doesn’t matter what the verdict is or what the judge decides; for reasons of pure national and political survival, Obama and Holder will find a way to reimprison this scum if the trial somehow ends up in acquittal. Which means this is actually the opposite of due process. It’s a stacked deck, right from the get go. So why even bother playing cards?

There is no good answer to the question, which is why they will never answer it. I told Jake Tapper tonight that he ought to ask it and he replied: “ive asked Gibbs that before; they refuse to say one way or another.” He linked this post, which has transcripts of Gibbs repeatedly ducking the identical question as to other terrorists:

TAPPER: Two questions about developments today. One regarding the Ghailani trial — him being flown to the United States — if any of the detainees who are brought to trial through the U.S. criminal courts, or even through military commissions — if any of them are found not guilty, will the administration let them free?

GIBBS: Well, I’m not going to get into hypotheticals about…

TAPPER: Forget the military commissions.

GIBBS: I’m not going to get into hypotheticals about the court cases either.

TAPPER: Well, this is an important part of — you’re talking about a credible justice system; bringing these people to justice. You’ve spoken at great length about this — the president has. If they are found not guilty, will they be found…

GIBBS: Well, let’s discuss that if it ever comes to fruition.

TAPPER: But isn’t that what is underlying a credible justice system? The idea that if you’re found not guilty, you’ll be free?

GIBBS: Sure.

TAPPER: So…

GIBBS: But I’m not going to get into hypotheticals about how certain cases may or may not play out.

TAPPER: So you’re not willing to commit to freeing people if they’re found not guilty?

GIBBS: I’m not willing to get into playing hypothetical games.

TAPPER: It’s not a game, Robert. It’s a question about the credibility of a justice system.

MAJOR GARRETT, FOX NEWS: Just the principle of it.

GIBBS: No, it’s — I’m not debating legal principles. I’m just not getting into the hypothetical back and forth of what happens on a case.

TAPPER: OK. So the Obama administration is refusing to say that if someone is found not guilty, they will be set free?

GIBBS: Jake, I am not going to get into the hypotheticals about specific outcomes of cases.

TAPPER: I’m not asking you to talk about a specific case. I’m talking about in general.

GARRETT: For all the detainees brought to the system — into this system of justice, which this administration said can and has in the past handled adequately — more than adequately, according to your talking points this morning, the terrorism cases brought before it in whatever venue — if that justice system, which the administration says should be trusted, renders a verdict of not guilty, is that person released?

GIBBS: We will talk about what happens about a verdict when a verdict comes.

TAPPER: Well, then how is the world supposed to have any confidence that this new system of justice that you guys are ensuring is going to be the case with detainees, is actually credible?

GIBBS: We think the Southern District of New York has a very good record, as it relates to trying and convicting terror suspects.

TAPPER: I believe what your — the facts sheet said this morning — was that it has a 90 percent success rate.

GIBBS: And I’m, in this specific case, not going to get into those hypotheticals.

I still think someone should ask the question about KSM. Tapper would be a good person to ask it, as would Major Garrett. I know this: whoever asks him should be someone who won’t accept the sort of gobbeldygook offered by Gibbs above as an answer.

118 Responses to ““If Khalid Sheikh Mohammed Is Acquitted, President Obama, Will You Release Him?””

Hoisted Petard….

When will these theory boys ever learn

Nice to put New York through the emotionalk rollercoaster of this – I cant help but think of the children who have (hopefully) finally come to grips with this – the wives and husbands who have maybe started to live again – to shove this RIGHT IN THEIR FACE!

How Horribly horribly callous and insensitive.

For cheap politics at best – for a deep rooted self loathing of our system of government at worst is being displayed by idiots of academia

For whatever ugliness Obama and his wife had heaped on them in their youth by intolerant jerks in society they are repaying it back millions fold, they need to stop and search deep deep inside and quit hating us

this is pure hatred and arrogance of victimization in its most reansperent form.

trying these criminals within sight if the site of their handiwork – that they themselves were cowards and didnt even participate in – recruiting others to do their twisted acts of total insanity.

These freaking weasels always avoid the hypotheticals that are inherent in the premise. Then shit happens and they say they never saw it coming because before it happened it was only a hypothetical.

The libs love to champion their impossible hypotheticals, though. They’ll hypothesize that this or that criminal might be innocent because there is a one in a billion chance that someone else has that DNA profile, etc.

thing is, this isn’t some gotcha game. This isn’t a political trick. Getting the answer to this question is a pretty serious stuff. If we’re going to have a trial, it really doesn’t make sense for it to not have consequences for the defendant.

This is also a horribly expensive and dangerous venture… we shouldn’t waste this kind of money and police strength in the best of times, but today it’s downright ridiculous.

I have to wonder if we’d really let him go. I think the GOP should go ahead and assert that Obama will. Let him deny it if it’s untrue, but I think it’s clear that he would let him go… why else give him a trial that seems less likely to hear all the evidence?

Being that there is law input from this site, it seems to me a good reason that you might handle this case like this is, if you had an agenda. That agenda may just be to increase Transnational Law implementation in this country and Shari Law in this countries court system. Something a smart Lawyer like Harold Koh may be an expert in.

This may not really be a trial of KSM after all. Just a vessel to further an agenda. Could this be possible?

I agree Eric. It’s sickening, but yeah, if a court says he’s found not guilty, then we really cannot hang onto him. If we don’t obey such rulings, we’re basically lawless… what else could Obama do in such a world?

I would hope that a covert action would kill KSM soon after release… perhaps give him a little time so that they can track his movements… not that he’s likely to do anything helpful to us. But the political cost is tremendous.

Well…. kinda like other things Obama does, this trial+appeals might terminate after Obama has no more elections to worry about.

Glenn Greenwald says the “worst totalitarian nightmare” is when a government locks away a detainee on a whim, “without being charged with a crime, without a trial, and without any recourse to challenge your imprisonment.”

If a detainee is charged, tried, and acquitted … and imprisoned anyway, wouldn’t that be even worse?

DRJ, of course you’re quite right. It’s hard to imagine Obama has led us to a place where that’s a real possibility. Where Gibbs openly and obviously permits that this is something they are leaving on the table.

This is who the ACLU supported, and this was the great hope for the left? Oops.

Every non-sequestered juror will be susceptible to intimidation. I foresee threats to family members. The trial of KSM will likely take a year. The jury will not be sequestered throughout. There is plenty of time for mischief.

If I wanted to change laws in this country, this would be the way I would do it. Obama owns the prosecutors and the defense teams. Think of it: defense teams of enemy combatants have been very left leaning lawyers. DOJ is owned by Obama and Holder. Motions are made, rulings are made, law is set.

With a defense team making the right motion at the right time and DOJ responding a certain way rulings will be made a certain way. New laws are then set. Welcome to Transformation.

Actually, I believe that isolating war prisoners on an island ruled by a despot was one of the most intelligent things I’ve ever seen done by the United States government.

The only problem has been the galloping anti-Americanism of the nation’s home-grown looneys intent on giving a comeuppance to the country that allows them to eat their Cheerios in the morning without fear.

…am not clear on these points (or whether they’re even possibilities): if the trial is held in New York City in a civilian court, can KSM’s defense team object, citing the inability to find an impartial jury? What if those selected for the jury cite fear of reprisal and request to be excused?

What I also haven’t seen addressed is the potential for highly sensitive information being disclosed and Al Qaeda having the ability to gather more intelligence to use against us as a result of the public trial. Safeguards? Because the unintended consequences could be devastating.

If Khalid Sheikh Mohammed Is Acquitted, President Obama, Will You Release Him?

As opposed to extraditing him?

In April, 2002, KSM and Ramzi bin al-shibh were on camera 70 minutes with al Jazeera, taking full credit for 9/11 and other plots.

“I am the head of the al-Qaida military committee,” he began, “and Ramzi is the coordinator of the Holy Tuesday operation. And yes, we did it.”

Even if KSM is acquitted on “tainted evidence” he would still face the 1996 U.S. indictment for the plot to destroy twelve commercial airliners flying routes between the U.S., East Asia, and Southeast Asia.

Actually, I believe that isolating war prisoners on an island ruled by a despot was one of the most intelligent things I’ve ever seen done by the United States government.

The only problem has been the galloping anti-Americanism of the nation’s home-grown looneys intent on giving a comeuppance to the country that allows them to eat their Cheerios in the morning without fear.

If I am an American and I decided to travel to vietnam, dress an a Cong, inflitrate and plot to kill people and I am caught on a battlefield in cambodia or arrested reentering the USA to kill our citizens

Its not the same as being dragged out of your car by a backwoods sheriff who thinks he owns the county

ATTORNEY General Eric Holder toured Guantanamo Bay this week, a “fact finding” visit prompted by President Obama’s “close Gitmo” order.
One wonders if his eyes were open to the facts on the ground – given Holder’s evident conflict of interest.
Holder’s previous job, after all, was as a senior partner with Covington and Burling – a white-shoe DC law firm that devotes considerable pro bono time to defending the Gitmo detainees. The job paid $2 million a year, and he expects to collect a like amount this year as part of his separation package.

The knuckleheadedness that went on at Guantanamo and Abu Grahib was done on Bush’s watch, but he really had no personal fault there… but Bush should have shook off opinion and continued with procecuting the terrorists there onsite at Guantanamo with military tribunals posthaste.

Dana, no matter what they say, either information will be given away that we want to keep secret, or certain charges will not be pursued because of the risk of compromise.

What do you all think the chances are of:
1. Getting an “impartial” jury?
2. Having the majority of the evidence allowed to be admitted? This was not an arrest according to US criminal procedure, after all.
3. Finding who read his Miranda rights and offered him a lawyer?

Unless I am told otherwise, I am going to seriously doubt if a “true” civilian criminal trial can/will be held.
If that is true, why bother? Do you want him freed on a mistrial? Do you plan to fix the system so a trial can be held to embarrass the Bush administration before the mistrial is declared?

As usual, they are talking out of both sides of their mouths. Holder and Congressional apologists emphasize we have the best prosecutors, etc, so “justice will be done” in suggesting they “won’t get away with it”. Well, as said, what is the purpose of a trial if you do not plan on adhering to the result?

I heard some blurb, in regards to Hasan, that while a person cannot face double-jeopqardy in civilian court, a person can be tried in a military court (if there is jurisdiction) even after a civilian court has found the person not guilty. If that is true, it is reassuring in thinking they will never be freed, but again begs the question; why begin the ordeal if you intend to make sure they end up convicted in at least a military tribunal anyhow?

If this does go forward, I can only assume the defendants will do what they will think is in the best interest of their cause, not necessarily aiming to cooperate with their attorneys for the attorney’s agenda. So the defendants will play their lawyers and the court while the defending and prosecuting attorneys are both trying to play the public. What a mess.

I believe Andrew McCarthy referred to this decision as “massively stupid” (correct me, please, if I’m wrong on that).

Holder was way over the field today. I mean, he guaranteed a conviction in so many words. So what’s the point?

If we’re trying to uphold the sanctity of the administration of justice in the United States, then the court should should be allowed to reach a verdict and pass sentence or allow KSM and his ilk to go free.

But, here’s the deal, KSM — at least — has already admitted his guilt. But, he was tortured. So, the jury takes that into consideration, acquits him and he goes free.

What happens then, nk? Is he arrested on another charge? That seems unfair to me. Do we give him a free ticket back to whatever country he chooses? I would have to say yes.

He should have given a shit and being President instead of wanting to have been President.

I’m not sure I understand what you mean by this. I assume you think Bush wasn’t serious about being President. Is that correct and, if so, why do you think that?

Also, how is the Obama Administration more serious than the Bush Administration about American justice when AG Eric Holder has already admitted KSM and the other detainees will never be released in the U.S.? (H/T Mike K)

I guess Holder is promising to deport all Guantanamo detainees but the Administration haven’t had much luck doing that up to now. How can Holder promise to do that in the future when they’ve had no luck doing it — with far less dangerous detainees — up to now?

On the other hand, it could be that Holder is promising to incarcerate the detainees until they die. If so, how is this better justice than the Bush Administration delivered?

Earlier this evening I saw an interview with a retired marine colonel who has been Muslim for decades. He said he was harassed no more than anyone else while in the service. He stated that he “and his community” thought that Hasan is a traitor to his nation, to his military, and to what he claims as his religion. He doesn’t like Hasan being described as a “Muslim terrorist” because he feels that whatever Hasan believes, it is not “true” Islam. I can readily understand the concept, and I think that when most people use the term “Muslim” or Islamic” terrorist they are intending to refer to those people who claim to be Muslim and who seek violent conquest of those who do not believe like them (including confessing Muslims who disagree with them).

If this is an accurate description of the situation, what would be a better term? “Jihadist terrorist”?

I think people in WWII had some sense that not all of the German people were the enemies of the allies, that Nazi and German were descriptions of two different groups of people, though with considerable overlap at the time.

I don’t think the vast majority of Americans have a problem with someone who is Muslim and can in good conscience live peacably in US society, we do have a problem when people pretend that a person like Hasan needs to be ignored or otherwise you are being discriminatory. I am very discriminatory against people who want to kill without just cause.

We are not at war anymore. Mass murder, as Krauthammer has noted, is being treated as just another crime. That’s what Obama is trying to tell us. This is, at least to some extent, an end to hostilities. We’ve already been sending terrorists to paradise, as SteveG noted.

Regardless, if our leader does not let people go free if they are acquitted of all their crimes, then we have given our president far, far too much power.

Do you plan to fix the system so a trial can be held to embarrass the Bush administration before the mistrial is declared?

Ag80, that was sort of my point: Essentially, it doesn’t make any sense to hold this in a civilian court, unless a desired outcome is perhaps already in the works. Anything to keep the focus on Bush seems consistent with these people. Cynical, yes, but it’s increasingly becoming the default position for many of us.

I did find this post by John Yoo regarding the consequences of sensitive information getting to the wrong people via a public trial. I’m a layperson who expressed similar basic concerns, but to have Mr. Yoo explain in detail the dire consequences of this WH decision causes me to consider even more, why they would go this route,

KSM and his co-defendants will have all of the benefits and rights that the U.S. Constitution accords those who live here, most importantly the right to demand that the government produce in open court all of the information that it has on them, and how it was obtained.

Finding out what the U.S. intelligence agencies know about al Qaeda will be an incalculable boon to the terrorist organization, which will be able to drop plans and personnel it knows are compromised, and push harder in areas we appear to know nothing about.

Our intelligence agents and military personnel will now have to conduct their capture of the enemy—often in battlefield conditions—under all of the strictures that apply to arrests of garden-variety criminals in the United States. Knowing that al Qaeda leaders may be tried in court, our soldiers and agents will have to gather evidence at the scene of “arrest” and secure it to the standards of a civilian court, all while entering a hostile environment, protecting their own personnel, and leaving without casualties.

Yes, something like Islamic Fundamentalist Radical/Extremist or such is commonly used, suggesting that the person is not only part of a group, but an avid advocate, such as not just a Scot, but a “Scot Nationalist”, who may want to actively want Scotland out of the UK.

Hopefully the Obama Administration will not let any detainees go if they are acquitted, but that’s different than acknowledging the law says they should be let go. What kind of justice system would we have if we kept people locked up even though they had been acquitted?

War isn’t like the justice system. In law, we often say that it’s better to let 9 guilty men go free than to keep 1 innocent man from going to jai. However, in war, we sometimes have to let innocent people die to stop our enemies. We don’t have to make that choice here. Here the choice is between giving them American justice or war-time justice, and I prefer the latter.

when I use the term Islamist – it refers to all the Islamic world and their beliefs – Islamic Jihadist are those who seek to convert the true beliewers of Islam to their method of propagating the spread of Islam through the sword instead of winning the hearts and minds of true converts by the strength and convictions of their faith. I have seen thousands of devot Islamists I have walked among them in many countries unmolested

But this Islamic Jihad has reignited the divisions of the religious world since the Ayatolla rose to power in the 70’s

Eric, when I say ‘Islamist’, I am refering to someone that practices ‘Islamism’. This is fundamentalist Islam, which includes a political system. It is a subsection of Islam. Islamist is a political adherent as well as religious adherent. It isn’t a term for all of Islam, though.

Once aliens are under the jurisdiction of American courts, I believe they have the same rights an American would have. Remember the Ramos-Compean case? Aldrete-Davila was an illegal alien but he had the same rights and privileges as an American victim. Ditto when he was the accused and charged with drug smuggling.

Thus, illegal aliens who are charged with crimes and tried in American courts have the same rights American citizens have: The right to discovery, the privilege against incrimination, the right to argue evidence should be suppressed, etc. However, I think there are differences in how they are treated post-conviction.

Once the trial begins in NYC, there will be suicide bombings in NYC or DC, because that is how AQ attempts to influence the flow of events.
If there was any justice in the world, the first bomb would be under the AG’s limo.
Welcome to the Third Intifada!

[…] Our friends on the left are (mostly) elated that some of the high-value prisoners being held in Guantanamo will be brought to the United States and given a fair trial in federal court. But a fair trial includes the possibility that the defendant will be acquitted! “If Khalid Sheikh Mohammed Is Acquitted, President Obama, Will You Release Him?” […]

On #60 the “boon” has been calculable to terrorists.
Forgive the lack of links or notations, but there is a female who was a lawyer for terrorists who was jailed for releasing names of informants, infiltrated undercover agents, and other information back to their handlers.
Within 24HRS of her being shown the “secret” information and evidence she told other terrorists and they began to “roll up” the compromised operatives.
I will leave to the imagination how our dear Islamist friends conducted themselves towards those who got “rolled up”… but do include power tools and do allow yourself to empathize with any feelings of betrayal and despair the agents might have felt. After all, they comitted treason against Islam so maybe metal filings in their eyes, blowtorches and a Makita drill are called for by the Koran… I confess to not being a scholar there

My prediction is that the NY judges will throw out the government’s case and order the terrorists released. Obama will shrug his shoulders, release them, and pay them a huge settlement for false imprisonment.

I always thought that the Bush Administration should have declared them to be Prisoners of War. That would have had the disadvantage of not being able to interrogate them, but most of the information they had quickly became stale. It would have had the advantage of allowing us to hold them until the war was over, without having to go to some form of trial, but once the war was over, they’d have to be released.

The real answer is that you should never take anyone prisoner if you are unprepared for the consequences of eventually releasing him.

AD – RtR/OS is right, there will be bombings and craziness in NYC if this is allowed.

Also, I want to know what kind of bad stuff actually happened at GITMO, because as I remember, every thing the press reported turned out to be bogus. Like, for instance, the koran in the toilet incident. I think there was an assumption that GITMO was exactly like Abu Ghraib, and to be specific, Abu Ghraib was only rogue for a short period of time until the people involved in that criminality were court martialed.

If the trial ends up with an aquittal, one way or another, and Obama tries to keep them locked up, Obama’s base would go ballistic and he would lose face internationally as “a new kind of US President”. So then he would need to consider whether that is one more thing he can ram down the American people’s throat.

It would be funny watching all of the gyrations people are doing to justify this decision, if it wasn’t so disgusting. John Kerry was right, “What a bunch of liars”.

I’m hoping that the 2010 and 2012 elections get in the way and nothing comes of it.

What about “Wahabi Jihadist”? Is that a precise enough term that excludes Muslims who are peace loving?

You couldn’t designate them as prisoners of war, because they don’t operate under a particular flag, carry distinctive uniforms, all the requirements of the Geneva convention. It seems we really want to test if the Scenarios in ’24, could possibly happen.

If/when people from Gitmo get transferred to Leavenworth or another Max security prison on the US mainland, I wonder if they will try to get new lawyers to find a way to get them sent back to Gitmo (before something bad happens to them).

Indonesia gave public trials using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents. In Argentina, the Israelis captured Adolf Eichmann, one of the most notorious Nazi war criminals, and brought him to Jerusalem to stand trial for his crimes.

Bush “dithered” on Guantanamo and what to do with the detainees.
Unlike Obama on Afghanistan, Bush was caught in a very no win situation.

300-400 detainees, some with peripheral ties like the Uighurs who may have been just “kitchen help” and other who are “the worst person in the world”
h/t KO.
Anyway, Bush didn’t want to have American kids running firing squads, hangings etc and handling Guantanamo like Auschwitz.

I think trials and executions (if found warranted by the military tribunals) should have been done regionally within six months of capture. By centralizing everyone in numbers, executing them gets assembly line like and makes the whole thing a spectacle.

Shoot the SOB’s in Kandahar. Subcontract it to the Afghans.
Shoot 10-20 a month in Egypt.
Don’t build up a backlog.
Then if you shoot a few a month at Gitmo and bury them at sea it’s no big deal.
Point is, if you are going to execute terrorists according to military law then figure a system out and get on with it.
Bush didn’t have the heart for this. FDR did.

First of all, I apologize for the rough language. To everybody and especially to DRJ.

Second, the Supreme Court pretty much said what we could and should have done, in the several detaineee cases. Instead of fooling around with newly-invented tribunals, there was already a procedure in place to try unlawful combatants. Courts martial. Tested and proven, to be in accordance with American law and international treaties.

As for Bush, he more than dithered. As far as Guantanamo goes, it is my view that he showed no leadership at all. He left a festering boil for the next President to deal with. It may be unfortunate that it is a softie like Obama but that’s our political system.

And were I advising Obama, I would junk the new tribunals and go back to square one — courts martial under UCMJ. Not Article III courts.

Come one, come all, Terrorists great and small. Come to New York City, come to DC, visit the Mall. Show your stuff, blow-up a bus, a car, the subway, and buildings near and far.

Earn your place in heaven, cut off heads, pile up the dead, take gifts to your friends in our jails. President Obama invites you to come, see the sights, start a fight, have fun. Our women are waiting, they’re here for the taking. Did you know our men are mostly unarmed?

I dunno. If — as seems unlikely, but not impossible — the jury votes not guilty, the obvious thing for them to do is have KSM rearrested immediately on additional charges; it’s not like there aren’t legit ones available.

Assuming that’s the plan, what benefit is there for them to admit it? If KSM is convicted, it doesn’t matter, and they get to crow about how standard judicial procedures dealt with such a horrible criminal and crime; if he’s not, they go to Plan B, which — from my amateur remove — seems entirely Constitutional, even if it doesn’t appear to be superficially sporting. (That latter doesn’t bother me.)

All of which is obvious and suggests KSM’s countermove — to constantly interrupt the proceedings, in an attempt to make the trial look less legitimate, forcing the government to try him with him in another room, or bound and gagged. His freedom isn’t really at stake — whether or not it matters to him — so he’s got no reason to play by the rules . . . not like the rules of civilized societies are a big deal to him anyway.

The obvious thing is to ask Obama the question, not Gibbs. As the Henry Louis Gates kerfuffle showed, it’s one thing when the White House press secretary says something, and quite another when the comment is coming out of the mouth of the president.

Tapper, Garrett or some other reporter needs to not just say “We tried to pin Gibbs down, but he was evasive,” and actually throw the question at Obama at his next news conference, where any attempt to evade the question in a Gibbs-like manner becomes a major story unto itself.

Dwight – Greenwald has shown a fundamental lack of comprehension of established international law in this area since he bagan publishing on it. I fail to understand why anyone cedes him any credibility on the subject. The examples you cited in you comment #88 are not comparable to that of the U.S., where a state of war (via the AUMF) has been declared. It is shoddy research for Greenwald to pretend equivalence.

Allahpundit is convinced that, if Obama were somehow forced to answer the question, that’s what his answer would be — meaning that the trial would be a sham:

Allahpundit must therefore be less cynical about President “Goddamn America” than I am. In light of the way Obama first publicly dealt with the massacre at Fort Hood, by relegating it to second place (in his embarrassing, pathetic “shout out” speech), and then saying people shouldn’t jump to conclusions when he next spoke about it in front of the media, I bet his answer would be more along the lines of:

“The legal system is what it is, and we must all respect it. Asalaam Alaikum!”

The more I think about it, the more it seems like staged drama. The odds of finding unbiased jurors seems microscopic, and it goes downhill from there. So it seems more probable that both Bush and the US justice system will be the defendants.

See some discussion above of what to call Islamic terrorists. It’s past time for worrying about it. They know who they are, the ones with clean consciences know who they are. When someone makes a scurrilous statement about redneck hillbillies, I know if I am one or not. And whether I choose to take offense is my problem, the intent of the ‘offender’ is his own problem.

PC is worn out and dead, we don’t have to participate in it unless we choose to.

This is “no good answer to the question” because it is an unfair question, a form of “when did you stop beating your spouse”. Gibbs should be calling Tapper on it.

It does not surprise me though that Patterico, a prosecutor, is hiding the ball on how someone should answer it. The correct response, as any lawyer familiar with the interplay of federal and state criminal law should know (and which Patterico probably does know, but chooses not to disclose), would be to explain why the question cannot be answered with a yes or a no.

If 12 jurors voted to acquit these defendants in federal court of all charges, the correct answers as to whether they would be allowed to go free should be “it depends”, because it depends on contingencies outside the control of the federal government.

So, for example, if there is another jurisdiction–say the State of New York–with prosecutors who believe it can press criminal charges, a decision to allow the defendants to go free after a federal acquittal would depend, in part, on the decisions of those state prosecutors. While acquittal by twelve jurors in federal court exhausts under the double jeopardy clause the ability of the federal government to file new charges arising from the same incident, it does not bar the state governments. Thus one could easily imagine a situation where the defendants, after a federal acquittal, would be released into the friendly arms of the NYPD, which we can all agree is not being set “free”, but rather moving from a spiffy federal jail to Rikers.

Therefor Gibbs, as the spokesperson for the leader of the executive branch of the United States, cannot answer that question one way or another, because it depends, among other things, on contingencies concerning prosecutorial decisions in jurisdictions for which he does not speak.

Every lawyer who looks, either from a prosecutorial or a defense point of view, at criminal liability always must think about the fact that in America, serious interstate crime raises multiple prosecution possibilities. You can’t fault Gibbs, who is not a lawyer, from shying away from making a fool of himself by addressing these points on the fly. I think we can also agree that Allahpundit knows nothing about this stuff, so he gets a pass for ignorant speculation based on his being, you know, ignorant.

But Patterico, who supposedly thinks about these kinds of issues for a living, chooses to bash Gibbs for declining to answer a question with a yes or a no that he can’t answer in that fashion because the hypothetical is not sufficiently complete to permit a binary answer.

If there are other jurisdictions, such as the State of New York, that want to hold KSM, OF COURSE, the federal government releasing him to them would make perfect sense.

If the fed courts acquit someone of all charges, then they have to be released from the federal system. Cyrus is trying to prove Patterico ‘wrong’, when Patterico just wants an answer to the question. If that answer is that the fed government will treat KSM to whatever release policies are in effect for any other common criminal, that’s the easiest answer Gibbs could have provided. There’s a reason Gibbs did not provide that answer.

This isn’t nearly as complicated as Cyrus is making it sound. We deserve an answer to whether the president has decided he rules beyond the juries of our country. Let’s not pretend this is a partisan issue. It’s a basic facet of a free society. It’s not a game. This isn’t like Gitmo or the surge… this is about whether the president can overrule the courts.

So it seems more probable that both Bush and the US justice system will be the defendants.

Holder will never have to formally release the DOJ Office of Professional Responsibility’s report with these showcase trials underway and memo-writer John Yoo defending lawsuits (Jose Padilla, et.al.) seeking damages for torture.

Brother Cyrus just has a big ole crush on Patterico, and since Patterico doesn’t think he is dreamy in return, there is much anger and nastiness. Don’t you think?

But this sentence is remarkable:

“But Patterico, who supposedly thinks about these kinds of issues for a living, chooses to bash Gibbs for declining to answer a question with a yes or a no that he can’t answer in that fashion because the hypothetical is not sufficiently complete to permit a binary answer.”

I think that there are a whole bunch of punctuation marks missing. Seriously, read it out loud.

I thought you were trying out for the new curmudgeon in residence slot…. (just teasing).

When I get going it is usually the tequila talking. Somehow the whole firing squad issue gets a (blurry) visual of dusty town squares with adobe walls, blindfolds and rifles with bayonets inexplicably but ominously attached (this thing could go badly wrong).
Spaghetti western meets Jose Cuervo’s La Reserva de la Familia… why my bail bondsman sent me a bottle for Thanksgiving I dunno…

Anyhow, I think Bush couldn’t bring himself to do these guys.
It was too personal and individualized for him.
It is a lot easier to send a hellfire missle into an al Qaeda meeting house than it is to have to ask some 20 year old Marine be a hangman.

Now under Obama we get a scenario where the defense lawyers get information and al Qaeda heads for Home Depot

What are you guys even bothering to fight for anymore? Your constitution it seems is complete bullshit, because none of you even believe in it anyways. The concept of a fair trial is clearly beyond any of you. Just have a kangaroo court and be done with it.

Then you can get on with the business of becoming a fullblown fascist state without realizing it because you’re too thick.

The whole point of the trial is to get Bush and Cheney indicted for war crimes somewhere in the world. KSM will talk about how terrible we were to him, and the Left will be drooling for it. That is the goal, just as the CIA officers were convicted of kidnapping Abu Omar in Italy. Note that the Italians involved were all given immunity based on “State secrecy laws” in Italy. And Abu Omar is free.

He supposes he will destroy the Right by doing so. I think he is incorrect about the Right, though maybe not about USA.

He has access to the unending dysfunctional monster that is the US criminal justice system. He will have Feiger, Shapiro, Sheck, or any number of lawyers falling all over themselves to defend KSM pro bono.

Since he wasn’t mirandized, it’s likely all confessions are out.

Since Holder has admitted the US “tortured” KSM, he can win out against that.

Since neither Obama nor Gibbs will allow that an acquitted defendant would be released LSM can argue that a fair trial is impossible.

If the fed courts acquit someone of all charges, then they have to be released from the federal system. Cyrus is trying to prove Patterico ‘wrong’, when Patterico just wants an answer to the question. If that answer is that the fed government will treat KSM to whatever release policies are in effect for any other common criminal, that’s the easiest answer Gibbs could have provided. There’s a reason Gibbs did not provide that answer.

Other than the fact KSM has admitted to killing thousands of Americans?

I would love to see him released to Israel, but Obama would never do such a thing. Afghanistan is a losing war where we have no strategy, so I wouldn’t feel so safe with him there. This is not some random terrorist… this is the best/worst terrorist in world history, and he really is a clear and present danger. This is really insane that we are handling this like it’s a political thing. come on, dems!

We don’t shoot the Azian Boyz and Crips on sight, we try them in courts because we are not in a war with them. KSM is part of Al Qaida, and is not supposed to be in that same system, extradited, or given our full rights. We really ought to hold him until the war has ended, but trying him in New York? GAHH

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